Citation Nr: 0906395
Decision Date: 02/20/09 Archive Date: 02/27/09
DOCKET NO. 07-25 284 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to basic eligibility for nonservice-connected
disability pension benefits.
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The Veteran served on active duty from June 1957 to August
1962.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a December 2006 rating decision from
the Manila, the Republic of the Philippines, Department of
Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
The Veteran did not serve on active duty during a period of
war.
CONCLUSION OF LAW
The Veteran's military service does not meet threshold
service eligibility requirements for VA nonservice-connected
pension benefits. 38 U.S.C.A. §§ 101, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.1, 3.2(f), 3.3(a)(3), 3.203
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and to Assist
As an initial matter, the Board has considered whether it has
a duty to assist with further development of the claim. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran was
notified of the general requirements pertaining to basic
eligibility for nonservice-connected disability pension
benefits in July 2006.
The facts are already established by the evidence now of
record and are not in dispute. Collecting additional
evidence would not be productive or helpful to the
appellant's appeal. Because the law as mandated by statute,
and not further development of evidence, is dispositive of
this appeal, further assistance is unnecessary. Mason v.
Principi, 16 Vet. App. 129 (2002).
II. Analysis
Pursuant to 38 U.S.C.A. § 1521(a), improved (nonservice-
connected) pension is a benefit payable by VA to a veteran of
a period of war who is permanently and totally disabled from
nonservice-connected disability not the result of the
veteran's willful misconduct. All veterans who are basically
eligible and who are unable to secure and follow a
substantially gainful occupation by reason of disabilities
which are likely to be permanent shall be rated as
permanently and totally disabled. 38 C.F.R. § 4.17.
One prerequisite to such entitlement is that the Veteran must
have had qualifying active service during a recognized period
of war. 38 C.F.R. § 3.3(a)(3). For veterans who served on
active duty in the Republic of Vietnam, recognized service
during the Vietnam Era (War) extends from a period beginning
on February 28, 1961, and ending on May 7, 1975. For
veterans who did not serve in the Republic of Vietnam,
recognized service during the Vietnam Era (War) extends from
a period beginning on August 5, 1964, and ending on May 7,
1975. 38 C.F.R. § 3.2(f).
According to the Veteran's DD Form 214 and verification
report from the service department, the Veteran served on
active duty from June 1957 to August 1962. He was ordered to
an additional period of active duty from October 23, 1961, to
August 11, 1962, by Exec. Order No. 10,957, 26 Fed. Reg.
7,541 (1961) which extended enlistments, appointments,
periods of active duty, periods of active duty for training,
periods of obligated service, or other military status, in
any component of an armed force or in the National Guard that
expired before July l, 1962, for not more than twelve months.
The Veteran does not contend that he actually had active
service either prior to or subsequent to the aforementioned
dates or that he ever served in Vietnam. Consequently, the
Veteran did not have active service during the Vietnam Era
(War), or any subsequent period of war or conflict. See 38
C.F.R. § 3.2(f).
The Veteran contends that he is entitled to VA disability
pension benefits due to his age and various disabilities. In
essence, the Veteran contends that he should be considered a
wartime veteran for VA nonservice-connected pension purposes.
He noted that he served for 9 months and 19 days during the
"Vietnam era" from October 23, 1961, to August 17, 1962.
The Veteran notes that he was ordered to this additional
service by presidential order. He also notes that he was
given a top secret security clearance, and that serving in
Vietnam would be a violation of his security clearance, as
such servicemen had travel and service restrictions. He
therefore, believes that his service should be recognized as
the equivalent as Vietnam service from October 23, 1961, to
August 11, 1961. He also requests application of the
benefit-of-the-doubt pursuant to38 C.F.R. § 3.102. However,
no authority in law or regulation exists to so reconsider the
nature of his duty, as the Board is prohibited from granting
benefits that are not authorized by law, regulation,
precedent decision of VA General Counsel, or instruction from
the Secretary of VA. See 38 U.S.C.A. § 7104(c). Therefore,
as a matter of law and regulation, the Veteran is not
eligible to receive a VA nonservice-connected pension, and
his appeal must be denied. See Sabonis v. Brown, 6 Vet. App.
426, 429-30 (1994) (where the law, rather than the facts, is
dispositive, the "benefit-of-the-doubt" rule does not apply).
ORDER
Eligibility for receipt of nonservice-connected pension
benefits is denied.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs